Justice Reform in 2015 and Beyond

By Marc Schindler

Executive Director of JPI

Originally Posted on Huffington Post's Crime Blog

Scout J. Photography via Getty Images

Criminal justice reform is enjoying a moment of mainstream support: Mass incarceration is now widely recognized as wasteful, in terms of dollars and lives, and the language of reform has been echoed by politicians, pundits and the media throughout 2015.

Among the important milestones of 2015, President Obama made history as the first sitting president to prioritize comprehensive criminal justice reforms. During a speech to the NAACP, the President outlined a sweeping criminal justice reform agenda to roll back mandatory minimum sentences for people convicted of drug offenses, review the use of solitary confinement, and invest in alternatives to incarceration. The President instructed Federal agencies to stop asking potential employees about criminal histories at the beginning of the selection process and became the first sitting chief executive to visit a federal prison. And with his most recent executive action, Obama also has commuted the sentences of more people than the last five presidents combined. Finally, changes to federal sentencing guidelines by the U.S. Sentencing Commission resulted in the historic release of more than six thousand people from federal prisons, and other changes to the guidelines will lead to over 10,000 prisoners having slightly shorter sentences in years to come.

The President and the Sentencing Commission are not the only catalysts for change. In California, the state began implementing voter initiated Prop 47, which changed low level offenses from felonies to misdemeanors for thousands of people, and created pathways for people with a conviction to expunge their records. In Connecticut, Governor Malloy proposed developmentally appropriate treatment of young adults in the justice system by raising the age of juvenile court jurisdiction in his state to age 21, and providing special confidentiality protections for adults under 25. And in states across the South, there have been bipartisan efforts to reduce incarceration and reinvest the savings towards efforts to keep people out of prison and reduce crime. Congress is also poised to pass bi-partisan criminal justice reform legislation, hopefully in early 2016.

For a country that far and away leads the world in incarceration, these are important signs of progress.

However, we cannot pop the champagne corks just yet. The latest prisoner statistics showed that there has only been a one percent reduction in the state and federal prison population -- nothing near the dramatic changes we need to see to bring real relief to the communities most impacted by incarceration. And we need to ensure that these efforts to include reducing incarceration for those imprisoned for violent crimes, not just non-violent drug offenders.

How can we ensure that recent and important efforts are the prequel to lasting and comprehensive reforms that dramatically reduce the use of incarceration?

First, policymakers could follow the President's lead: Like Obama, political leaders need to witness firsthand the failures of these institutions, and commit to substantial reform.

Second, we need transparency and oversight of the corrections system, and to engage those most impacted by the system in the movement to reduce prison populations. As the Marshall Project editor-in-chief Bill Keller laid out in a recent essay, there needs to be more media access to prisons and jails, to provide for accountability in our corrections systems, sustainability for the reform taking place, and as a way to engage the most impacted communities in reform. Keller notes that, "unless the men and women and children we incarcerate are visible, the clamor for reform is likely to be unsustainable -- a moment, but not a movement."

Shining a spotlight on what is happening in prisons, and building a movement of the most impacted communities to close prisons will make more money available to be reinvested in the kinds of services that promote safe and healthy communities. We should take the billions we are currently spending on prisons and jails, and make bigger investments in a public infrastructure that can house, employ, and meet people's treatment needs outside the criminal justice system.

Finally, while the communities most impacted by incarceration will build this movement, this work needs to be owned by everyone. The reach of the justice system is far and wide, and there are countless individuals whose direct experiences and leadership should shape the direction of reform.

Mass incarceration has reshaped and torn at the very fabric of our nation. To turn the tide, we all need to be a part of a broad and deep movement for reform. Together, we can make sure the next chapter is one built on promise rather than failure.

The Reflections of a Hypocrite

By Leo Kim

Guest Blogger

What happens when you learn that you’re a hypocrite?

That was the thought bouncing around my head as I fumbled around a row of black trash bags lining the street, dealing with the aftermath of a sudden eviction.

A few hours earlier, I had been at my desk at Justice Policy Institute’s office working when I got a call. “You need to get here right away,” a panicked neighbor told me. “The guy you’re subletting from is being evicted and the marshals are taking out everything.”

First, I thought it was a joke. There’s no way, I thought. It was too ironic. After all, I had only recently finished helping with research for JPI on the intersection of homelessness and the criminal justice system in Maryland.

Thirty minutes later, when I got to the apartment and saw my entire life in D.C. tossed indiscriminately into trash bags on the side of the street, I knew it was no joke. I had received no word of the eviction. No forewarning. But there it was.

It was quite a scene and on a busy Georgetown afternoon; I stuck out.

Most passersby tried to avoid eye contact. Some talked amongst themselves about what could have happened. A select few actually came up and asked me themselves, leaving with words that, while comforting, amounted to little more than “I’m sorry, I wish I could help.”

It was at that point that a man of about 50 approached me. Despite looking worn and tired, he told me that he wanted to help. He told me that something similar had happened to him, and he understood. If I needed anything, I should come get him— he’d be across the street.

This man, homeless, was the only stranger to offer me help that day.

All this started to get me thinking. What would I have done had I been one of the people walking by? After all, I should have known how swift and terrible something like this could be. I had spent the better part of a summer specifically researching it, and I knew that for most people, the same event would have been far worse than I could ever hope to comprehend. I knew from my research that homelessness could have devastating impacts and often lead to involvement in the justice system.

I, who could rattle off dozens of facts about the worst parts of homelessness, wouldn’t have offered substantial help. And while I’m sure there are better souls out there, I think most people would do the same— they did do the same.

So where does this leave me?

The thing is, I’m a little bit of a dork. But not just any kind of dork, I’m a philosophy dork. So naturally, that’s where my mind went.

There’s a theory in philosophy that essentially says that your beliefs are intimately linked to your actions. If  you believe something, you’ll act in accordance with that belief. If you act in a way seemingly contradictory, we can say that you never believed that thing in the first place. After all, it makes sense to say a person who acts bigoted doesn’t believe in equality, even if they explicitly say they do.

Plus, if beliefs don’t cause action, then why would we bother teaching correct information? What’s the purpose of teaching people about global warming if we don’t think it’ll lead to positive change, to something happening?

So how would someone who believed in the inequity surrounding homelessness have acted in that situation? The obvious answer seems to be that they would have helped. But, contrary to my belief that people who are homeless need more than a few meaningless words, that’s exactly what I would’ve done, like so many did that day.

What conclusion did I have? I was a hypocrite.

I thought I had done all the right things to help myself become more understanding of the world around me— to become more understanding of the privilege I have that so many lack, of the obligation we all have towards one another. I had researched, written, and learned about the relevant issues. I had taken classes on ethics and waxed philosophical.

But at the end of the day, this intellectual education wasn’t enough to ensure that my beliefs translated into actions consistent with those beliefs. I didn’t have the right beliefs in the sense that we want them, beliefs in the sense that they matter in a tangible way. There was still a vast chasm separating my intellectual knowledge, and this visceral, acting knowledge.

It’s probably safe to assume that many reading this, like me, are interested in reform and have a genuine desire to—pardon the hackneyed expression— “be the change that they wish to see in the world.”

Yet, this isn’t something that can be achieved in a purely academic setting, as so many of my university peers may think. Rather, there needs to be something connecting you to the people the problem affects; it needs to be human, not solely intellectual.

Fighting this abstraction through personal involvement is important. With it, the divide between the two kinds of knowledge can start to inch closer and closer together.

When I came to my internship at JPI, I was told that my primary job was to “learn.” By the end of my internship, I realized that the most valuable kind of learning I did was unlike the academic kind I had become so accustomed to in the past 15 years of my life.

Getting a chance to meet those that the problem affected and becoming more personally conscientious of the issues at hand gave me something I could have never taken away from a report or a classroom. And this is precisely what we need if we are to become more like the person we all want to be, rather than the ones we so often are.

Leo Kim is a student at Yale where he studies philosophy and writes for the Opinion Section of the Yale Daily News. He is also a former JPI Research Intern.

Help Young Adults Succeed: Create Alternatives to the Justice System

By Marcus Bullock

Guest Blogger

On October 2^nd, the Washington Post published “Why 21 year-old offenders should be tried in family court”. As I read the op-ed, I was reminded of the young guys that I knew while I was locked up as a 15-year-old kid.

The young men around me may have been older than I was, but these guys were no different from me. For Youth Justice Awareness Month at the Campaign for Youth Justice, I created this video about why experiencing prison while still developing is extremely harmful for young adults. As I learn about the brain science and behavior research that shows what seemed obvious to me at the time, I now know that there’s not that much difference, developmentally, between an older teenager and a young adult.Now that we know this, I hope we can create approaches and programs that are based on what science tells us.

Instead of treating young adults the same as if they are much older and putting them in the criminal justice system, we should create systems for diversion, community-based services, and maybe even special facilities to address their unique needs. I now run my own home remodeling business, and am the founder of the Flikshop mobile app, which generates postcards from digital downloads to help keep people in prison more connected to their loved ones. If we provide supports that recognize the needs of young adults, even if they are in the adult criminal justice system, we can see lots more people succeed like me. Doing this would be the ideal game plan, and would ensure that our communities are safer in the long run.

Marcus Bullock is the CEO and Founder of the mobile app Flikshop. He is also a Board Member at the Justice Policy Institute. 

A national agenda for criminal justice reform: Not just second chances, but a rational first response

By Marc Schindler

Executive Director of JPI

Originally Posted on Huffington Post's Crime Blog

During a powerful speech to the NAACP convention on Tuesday, President Obama outlined sweeping reforms to ensure our justice system is more fair and effective. He will be the first President to visit a federal prison, and he commuted more sentences in a single day since Lyndon B. Johnson. 

These efforts will surely illuminate some of the most glaring problems with our nation’s justice system, such as the excessive incarceration of people convicted of nonviolent drug offenses and deplorable practices of solitary confinement. Solving the nation’s crisis of incarceration will require sustained attention and committed action. And while removing or reducing time served by people convicted of nonviolent drug offenses would be significant, ending the era of our incarceration generation requires deeper changes where incarceration is used as the last resort. This would be a dramatic shift from current practices where incarceration is too often used as the first response to social problems.   

Obama’s speech rang like music to the ears of community activists, advocates and experts who have long called for reforms like eliminating mandatory sentences, ending the use of solitary confinement, and investing in hard-hit neighborhoods. As the President noted, there is nothing new about recognizing the failures of the criminal justice system. What has changed is a growing political and popular consensus that business as usual isn’t working for anyone.

When I learned of Obama’s scheduled visit to the El Reno federal prison in Oklahoma on Thursday, my first thought was gratitude for an encounter that is long overdue. My second thought was disbelief. Was it possible that a sitting President of the United States, which spends $80 billion each year to house the world’s largest incarcerated population, has never before investigated the impacts firsthand? Imagine a nation where health care or education policy is designed and implemented on state and federal levels without the Commander in Chief ever stepping into a hospital or school.

It’s well known that the justice system disproportionately impacts young men of color, and treats people of color differently for the same crimes. Essentially, there is glaring unfairness in our so-called justice system. The President also spoke to the enormity of the system in terms of its costs and impact on children and families.

Consider the magnitude.  Expanding on an estimate from a Bureau of Justice report, roughly 2.5 million children have incarcerated parents. Using the same math and considering that about 70 million people have criminal records that means approximately 78 million children have parents with a record. In the end the total number is staggering: out of a national population of 318.9 million people, 153 million are either in prison or jail, have a criminal record, or have parents who are in prison or jail, or have a conviction.  

And this is the first time a sitting President has visited a U.S. prison?

I have every hope that the President will be deeply impacted by what he experiences in El Reno. In my own work, visits to prisons and encounters with people in prison have been some of the most powerful ways to motivate reform. Following the President’s lead, every governor, mayor and county executive should be called on to visit an adult or juvenile facility within the next 60 days. 

I know that the commutations the President ordered this week will mean everything to the people who have been given a second chance. And diverting individuals or reducing sentences for people convicted of nonviolent offenses would make a significant dent in the imprisoned population. But sentencing reform should be considered more broadly and account for actual public safety benefits. 

Marc Mauer of the Sentencing Project has advanced the idea of sentencing maximums, which cap sentences at 20 years except for the most extreme instances. Decades long sentences increase costs without advancing safety. To implement comprehensive reforms we need to address excessively long sentencing system-wide, not just for non-violent drug offenders.

The President says that we are a people that believe in second chances. I agree with that, but we also must scrutinize our first responses. Now is the time where we must work together to ask and answer the hard questions: In what instances is prison the correct response? For whom is it the right option? And what is it intended to do?

To truly transform our justice system, we need to not only open our eyes to its failures but also question its intent. We all need to work together to make sure that this shift is not just in the way we talk about prisons, but ultimately in how they are used—as a last resort, in limited circumstances, and always measured by their fairness and effectiveness.

Labor Pains: Banning shackling during childbirth isn’t enough

BY Daniel Landsman

Former JPI Intern

In November 2008, Jennifer Farrar was arrested for cashing fake payroll checks and booked into Cook County Jail in Chicago, Illinois. Farrar went into labor during a hearing in January 2009 and was rushed to the hospital, shackled and chained. When she arrived at the hospital, the belly chain was removed but her hands and feet remained cuffed, despite doctors and nurses asking for their removal. Finally, when it came time to push, all but one cuff was removed, leaving her left arm cuffed to the hospital bed while she was giving birth.

Farrar became one of the many women to give birth while under the custody of a prison or jail and with one or more of their limbs shackled.

Women throughout the country are at risk of being subjected to the same treatment Jennifer Farrah received during the birth of her child. 29 states (report was completed before legislation was passed in Maryland, Massachusetts, and Minnesota) do not have state laws preventing the shackling of pregnant women who are in the custody of correctional systems during childbirth. Of those 29 states, 21 have departmental policies banning or regulating the practice. The remaining seven states view women in labor as a safety risk that must be shackled at the ankles, wrists, and across the belly. These shackles can cause serious health risks during childbirth and are clear violations of our protections against cruel and unusual punishment.

It seems that state laws or departmental policies addressing the issue are not enough. Take, for example, the State of Tennessee. Following a lawsuit against the city of Nashville, after a woman in the U.S. without documentation was detained for driving without a license and forced to endure the pains of labor while cuffed to a hospital bed, the Tennessee Department of Corrections created a policy against the use of restraints. However, the policy did not specifically ban the practice during the total duration of labor. Instead, the policy gives discretion to corrections officers, directing that “restraint devices and methods employed during movement and transportation be appropriate to the medical and security needs of the inmate”. In other words, because women are likely to be at the prison when they go into labor, they can be shackled while they are being taken to the hospital and in any movement throughout the hospital.

Similarly, despite state legislation to end the practice in New York, women continued to be shackled during labor. According to a report by the Correction Association of New York, 23 of 27 women interviewed were shackled during pregnancy in direct violation of a law banning the practice.

As the population of women in prison continues to grow—  an increase of 100,000 since 1980—we cannot allow state and federal prisons to continue the barbaric act of shackling women during childbirth. These states need to enact legislation (or even policy) that contains clear language banning the practice, such as the bill enacted in Washington, D.C. in 2013. The bill provides many rights to pregnant women in the correctional system, including banning shackling of pregnant women beginning in their third trimester.

Passing legislation or enacting policy is an important step in the process of stopping this practice, correction officers must be trained on anti-shackling laws as they are passed and women must be properly educated on their rights under anti-shackling laws. States need to clearly communicate to the Department of Corrections and the correctional officers that the practice of shackling women in labor is no long acceptable.  A shift in attitude about shackling women during labor is a long time coming and will likely go a long way to ensuring the safety and well-being of women and their babies.  

Bringing an End to the Incarceration Generation

By Marc Schindler

This blog post originally appeared on The Huffington Post's Crime Blog 

In the not so distant past, election cycles inevitably saw a political race to incarcerate where candidates competed to be the toughest on crime. Making history as the first candidate to raise the issue of ending the "incarceration generation" during a presidential election, Hillary Rodham Clinton has effectively repudiated the very policies her husband and others designed and implemented during the drumbeat of the lock 'em policies of the 1990s. The hallmark of that effort was the 1994 Omnibus Crime Bill, which was signed by Bill Clinton and resulted in increased federal funding for police and prisons, and encouraged longer prison sentences.

The political landscape has changed dramatically, and leaders from all across the spectrum are finally embracing "smart on crime" reforms to reduce the costs and size of a criminal justice system widely recognized to be broken and ineffective. In just the last few months, amidst calls for racial justice and policing reforms in communities like Baltimore and Ferguson, over six hundred interested lawmakers, advocates, faith leaders and researchers attended a national bipartisan summit in Washington calling for criminal justice reform.

The radical shift in rhetoric, however, has yet to be followed by the kinds of sweeping, comprehensive reforms that would result in a serious dent in our nation's prison population. By contrast, when the tough on crime movement took hold in the '90s, it was followed by expansive and widespread policy changes at every level of government that resulted in an explosion in the prison population. With the exception of a two-year dip, prison and jail populations nationally have continued to rise. As of 2013, there were 2.2 million people in prisons and jails and 4.8 million in the community on probation or parole, for a grand total of nearly 7 million people under the justice system's control. If we are serious about ending the failed era of mass incarceration, we need to have the rhetoric followed by concrete policies and implementation.

The need for these changes has been evident for decades, and finally is getting the attention it deserves. Sadly, it has taken recent tragic events to put a national spotlight on problematic policing practices with racially disparate impact, neither of which is a new problem. That said, while policing reforms are critically important to eliminating the use of excessive force and reducing the number of people coming into the justice system, they remain part of a larger criminal justice approach that has devastated already vulnerable communities, and targeted people of color.

None of these problems are new and have been documented before, including by the Kerner Report issued in 1968 following unrest in communities of color across the country. Finding that the unrest in African American communities was largely the result of frustrations due to a lack of economic opportunity, the report called for investments to create jobs, improve housing and address de facto segregation in our communities.

Now, almost 50 years later little has changed and we see many of the same pervasive problems existing in cities across the country. And in fact, maybe the biggest change is that in addition to the problems of the past, we have now added mass incarceration to the list of problems plaguing these communities. For example, in a recent analysis, the Justice Policy Institute and the Prison Policy Initiative found that Maryland spends $300 million to incarcerate people from the city of Baltimore, who make up one out of three people in state prison. Freddie Gray's neighborhood of Sandtown-Winchester/Harlem Park has an incarceration rate eight times that of the state of Maryland, with the result being that $17 million in taxpayer dollars are spent each year to incarcerate people from that small community.

The same neighborhood has some of the city's worst indicators for public health, including lower levels of income and education, a high exposure to lead paint, and a shorter life expectancy than neighborhoods within a short radius, essentially the same types of conditions documented in the Kerner Report. The only "investment" with a clear impact in that neighborhood is the criminal justice system, which touches nearly everyone in Sandtown-Winchester in some way.

As the camera crews pull away from Baltimore, few have noted that policymakers in Annapolis and federally took no meaningful steps in the last legislative session to reduce prison or jail populations.

Without a dramatic change, spending on prisons and a criminal justice approach as the first response to economic challenges will continue to undermine the social fabric of the most vulnerable neighborhoods. And even millions of dollars invested in social services will do little to improve circumstance if the criminal justice system continues to touch nearly every element of people's lives.

Efforts to reform the justice system are not new, and many of the political leaders championing changes today are followers rather than the innovators. Some are even trying to undue the consequences of their own actions taken in the 90s. Those in the field know that ending mandatory minimum sentences by giving judges more sentencing discretion, reversing "truth in sentencing" laws that result in unnecessarily long times in prison, and providing treatment rather than incarceration to drug offenders are the types of changes that are needed.

It is important to recognize that progress has in fact been made in some states. The state of New York was able to reform its draconian Rockefeller Drug Laws in 2009, and saw an 18 percent decrease in the prison population without compromising public safety. California recently shifted a series of offenses from felonies to misdemeanors, which will mean fewer people can be sent to state prison. But mandatory minimums that keep people in prison too long remain on the books in both states.

No single category of reform will turn around the era of incarceration generation. Appropriate practices in policing that serve the community rather than fight it are essential to neighborhood and community interactions. Providing robust treatment and mental health options to keep people outside of the prison system is essential. Allowing people who have served their time to successfully reintegrate into communities is critical to allowing people to stay out of the system.
To make a significant reduction in the population of people in prison would also require a tough and unflinching look at who is in prison, for how long, and to what benefit.

An examination of violent offenses more broadly shows that, according to a recent report by the National Institute of Justice, even though burglary is categorized as a property offense, it is most often prosecuted as a violent offense. Looking at the aging population of prisoners, who research suggests are unlikely to ever offend again, would provide another class of individuals who could be returned to the community with minimal public safety risk.

Looking closely at the category of "sex offender," for example would reveal that many who are on registries are not the predators they are imaged to be. "Romeo and Juliet" crimes can fall in that category, as can exposure in public. And providing developmentally-appropriate approaches to 18-24 year-olds, who are neurologically wired to change, is another entire category of people who could be managed more effectively and save precious tax dollars.

The '90s saw impassioned rhetoric followed by sweeping changes and a rapidly different prison population. While no one is advocating for the knee-jerk policies of the past, we are still waiting for a comprehensive national reform agenda that looks closely at each point of the system, from the first contact with police to diversion, sentencing, or prison to reintegration after contact. We moved the ship but are still waiting for the tide to turn.

The good news is that more today is known than ever before about what works and doesn't work to address offending and promote safety. We have the information and research to support making big changes. We now need the leadership to usher in a new age.

Marc Schindler is the Executive Director of the Justice Policy Institute. 

Adjusting Police Attitudes

By Tatiana Laing

JPI Intern

This month, I had the opportunity to attend two events on policing. They had different focuses, but a common tone, and left me sure of one thing: We need to reform the way we police in America.

On March 4th, I attended Values Based Policing, hosted by the Police Foundation. The presenter at this event was Dr. Richard Adams, Chief Inspector of Police Scotland. In addition to serving as a police officer in Scotland for over 20 years, Dr. Adams attained a law degree, a Master’s in International Law and a professional doctorate in Policing. As the one of the individuals charged with creating a code of ethics for Scotland’s national police force, Adams had a lot of interesting insights on the difference in policing between Scotland and the United States. Given the recent Department of Justice report concluding that the Ferguson police department had routinely violated the civil rights of the community, Dr. Adams’ talk on the values of policing was particularly interesting.

Reducing Incarceration & Scaling Back the Criminal Justice System: A Bipartisan Approach

By: Natacia Caton

JPI Intern

Nearly a week after President Obama stood before Congress and addressed the Nation at the 2015 State of the Union Address, a speech in which he urged Democrats and Republicans to join forces in order to reform America’s flawed criminal justice system, members from both sides of the political aisle came together on Capitol Hill to discuss the looming issues surrounding the topic of criminal justice reform.

On [January 28th, 2015], the Constitution Project hosted a bipartisan briefing, “Advancing Criminal Justice Reform in 2015,” featuring congressmen, activists and other experts dedicated to the cause. Moderated by TCP board member and former American Conservative Union chair, David Keene, the panel included Senator Al Franken (D-Minn.); Senator Rob Portman (R-Ohio); Rep. Danny K. Davis (D-Ill.); Rep. James Sensenbrenner (R-Wisc.); prison reform activist and author of the memoir Orange is the New Black: My Year in a Women's Prison, Piper Kerman; director of the Center for Criminal Justice Reform at the American Conservative Union Foundation, Pat Nolan; former Obama administration advisor and political commentator, Van Jones; and Mark Holden, the general counsel and senior vice president of Koch Industries, Inc.

Say Hello to JPI’s Spring Interns!

By JPI Staff

The Justice Policy Institute is thrilled to welcome three interns for spring 2015! Each of our new interns brings a unique set of experiences and skills that will help us accomplish our goals for the new year.